Racial profiling occurs whenever law enforcement agents use race, religion, ethnicity, or national origin as a factor in deciding whom they should investigate, arrest or detain, except where these characteristics are part of a specific suspect description. Singling people out on the basis of their race, ethnicity, religion, national origin or perceived citizenship or immigration status is in direct breach of the founding principles of this country. Regardless of whether it takes place under the guise of the war on drugs, immigration enforcement, or counterterrorism efforts, racial profiling is always wrong.

But it happens. Every day.

The Constitution Subcommittee of the Senate Judiciary Committee held a hearing today on racial profiling in America. An overflow crowd filled the hearing room. Senator Durbin, who chaired the meeting noted that Congress was working on a bill to end racial profiling by law enforcement in 2001, but efforts were derailed by the 9/11 terror attacks, which led to officially sanctioned, rampant profiling across the country.

Montgomery County, Maryland is a vibrant and diverse community. A suburb of Washington DC, our county is generally regarded as tolerant and inclusive, but there are still incidents of profiling by our police force. These incidents create real fear in our community and sow distrust. Just one example of problematic police conduct occurred at the Montgomery County Fair in 2010, when five Latino boys and one African-American boy were stopped, questioned, harassed, physically searched and photographed without their permission by five members of the Montgomery County Police Gang Unit. The boys were given trespass notices, prohibited from returning to the Fairgrounds for one year for being “with known gang members and wearing gang paraphernalia.” There was no evidence any of the boys were involved with gangs, and none were sporting “gang paraphernalia,” but they had little recourse but to file a complaint with police, which was handled administratively. The outcome of that administrative action is unknown due to the Maryland Public Information Act, which precludes disclosure of personnel matters.

The Montgomery County Police have recently begun promoting “Operation Tripwire” as part of the National Suspicious Activity Reporting (SARS) Initiative. The police have made available on the county website a booklet called Operation Tripwire: Potential Indicators of Terrorist Activities for use by the community. The wide range of commonplace activities identified as ‘suspicious’ opens the door to racial, religious, ethnic and national origin profiling. Examples of “potential indicators of terrorist activities” identified for the public by the Montgomery County Maryland police include: “purchases of expensive photography equipment with panoramic shooting capability,” “payment by cash rather than a commercial credit card” at a hardware store, beauty supply store or hotel, a person “attempting to enter (a nightclub)… alone,” or a “vehicle which has undergone recent body work” in a parking garage, or “taking notes or calling on mobile phones” while on public transportation! Although the booklet contains a disclaimer that “just because someone’s speech, actions, beliefs, appearance, or way of life is different, it does not mean that he or she is suspicious” the booklet certainly does promote suspicion of alternative religious views or practices: “making extreme religious statements” and “use of an apartment as a house of worship” are listed as potential indicators of terrorist activities. We are greatly concerned that the vague, even silly, catalogue of indicators will encourage participants in the program to “fill in the blanks” and rely on stereotypes and profiling to distinguish between suspicious and innocent buyers of cameras or drivers of cars with evidence of bodywork.

In our testimony, MCCRC urged the Committee to move swiftly and take concrete actions to prohibit racial profiling at the federal, state and local level:

Congress should pass the “End Racial Profiling Act (S.1670)” and institute a federal ban on profiling based on race, religion, ethnicity and national origin at the federal, state and local levels.

The Subcommittee should urge the Department of Justice to amend its 2003 Guidance Regarding the Use of Race by Federal Law Enforcement Agencies to apply to profiling based on religion and national origin, remove national and border security loopholes, cover law enforcement surveillance activities, apply to state and local law enforcement agencies acting in partnership with federal agencies or receiving federal funds, and make the guidance enforceable.

Congress should hold hearings on the National SARS Initiative to evaluate the effectiveness of the program, and to address concerns about profiling, privacy and other civil liberties and human rights concerns.